Bark if you love Justice Souter!

The Truth About Cats and Dogs

Bark if you love Justice Souter!

F. Scott Fitzgerald wrote, "[A]lmost everybody can be imagined as either a cat or a dog," and nowhere is that more true than the Supreme Court. Oral argument splits cleanly today between justices who would rather be up a tree than at the mercy of a canine and those who can't seem to get enough of man's best friend.

Roy Caballes was stopped on I-80 for driving 71 mph in a 65-mph zone. Illinois state trooper Daniel Gillette asked to see his license and registration, then told Caballes he'd let him off with a warning. Gillette had him wait in his patrol car while a license check took place. Meanwhile, another officer from the state's drug interdiction team became inspired to race over independently and check out Caballes' car for drugs. His sniffy dog found them. Caballes was sentenced to 12 years in prison for drug trafficking. He tried to suppress the drug evidence, claiming the dog sniff was illegal. The Illinois Supreme Court agreed with him, finding that some kind of "reasonable, articulable suspicion" of criminal behavior is necessary before releasing the hounds.

The Fourth Amendment prohibits the government from searches or seizures that are not reasonable. Generally, if the state wants to search you, officers need probable cause and a warrant. In Caballes' case, there is no question that the original traffic stop was lawful. He was speeding. But nothing Gillette could have seen or smelled on his own would have raised his suspicions about contraband. The problem is the dog sniff that got bootstrapped onto the business of writing up a warning. So the question for the Supreme Court: Is initiating a dog sniff, with no underlying suspicion of criminal activity, a "search" for Fourth Amendment purposes?

The ACLU filed an amicus brief on Caballes' side. Among briefs filed on the government side was a joint pleading by Underdog, Scooby Doo, and McGruff.

Illinois Attorney General Lisa Madigan (collie) certainly thinks dog sniffs are reasonable, and she's got the case law to prove it. In a 1983 case, United States v. Place, the Supreme Court found that a dog sniff (in a different context) was not a search for Fourth Amendment purposes. Four years ago in Indianapolis v. Edmond, the court invalidated roadblocks used solely for drug interdiction, expressly saying that dog sniffs are "much less intrusive than a typical search." Madigan points out that under either case, a dog sniff doesn't implicate the Fourth Amendment.

Justice David Souter (Persian) is quick to agree that a sniff isn't a "full blown search," but adopting the government's either/or position, he says, means there's "nothing to prevent the police from taking dogs to every municipal garage" and around the foundations of every private home, just to see if the dog gets a "sniff of something."

When Madigan reiterates that dog sniffs are not searches, Justice Ruth Bader Ginsburg (calico) takes a swipe: "Is that your answer? That police can parade up and down the streets of the country with dogs?" Madigan tries to reassure her that yes, that's constitutionally true, but Illinois, at least, doesn't have the resources to actually deploy a whole army of snoop dogs.

Justice Antonin Scalia (Chesapeake Bay retriever; darling of the duck hunters) points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." Justice John Paul Stevens (the Cat in the Hat) then asks whether Caballes was really only driving 6 miles over the speed limit when he was stopped. "I don't imagine you stop everyone on I-80 going 71 miles per hour. ... I know I've done it many times myself," he adds.

"Inadvertently," prompts Scalia, trying to save Stevens' confession from turning into a spontaneous courtroom dog sniff. Scalia asks Madigan whether Kyllo v. United States would have come out differently if the technology could detect only dead bodies with knives in their hearts as opposed to a broad range of activities. (Kyllo, you may remember, was the 2001 thermal imaging case. Cops were using scanners to determine whether you were growing pot—or engaging in, heh heh, other heat-producing activity—in your home. Scalia wrote the 5-4 decision finding such searches unconstitutional.)

Justice Anthony Kennedy (sheepdog) asks her, "Have you any authority for that, other than Justice Scalia's speculation?" She tells him that the sensors in Kyllo picked up "all kinds of activity," whereas drug-sniffing dogs pick up only illegal drugs. Justice Sandra Day O'Connor (unusually pit bull today) asks what kind of "intimate details" can be picked up by thermal imaging. Madigan starts to say there was some dispute among the justices on that point in Kyllo, but O'Connor snaps at her again, "What details?"

"Something about my lady's bath," purrs Ginsburg. Scalia points out that the court's concern in Kyllo wasn't just the "crude possibilities of thermal imaging but the possibility of more and more detailed images" in the future with improved technology. Whereas with dogs, he says, "I can't imagine they're going anywhere." Madigan doesn't quite agree. "Even if they could create a mechanical dog," she says, a dog sniff is still not a search. Now it's turning into a sci-fi movie: armies of great mechanical dogs snorting up the roads of America. Will Smith holding them at bay with fistfuls of mechanical beef jerky. ...

Says Ginsburg—hissing down from a tree: "But dogs can be frightening, humiliating. I have a right to be let alone by my government." Madigan notes that there are "millions of dogs in this country, labs, retrievers, beagles" and that police dogs are "identical to the dogs we meet on the street." Except that they can't stop sniffing—like coked-up roadies for Mötley Crüe.

Christopher Wray (hotdog) has 10 minutes to argue on Illinois' side for the Justice Department, and he quickly finds himself in the middle of a Scalia-Stevens scrap that attempts to divine whether dogs were trained to sniff for illegal drugs in 1791 or just for maize. Souter is still playing cat-and-mouse with the hypothetical in which cops walk dogs around your home. And O'Connor wonders if they can similarly walk dogs around parks or neighborhoods in which drugs are sold. The specter of armies of canines unloosed across America, sniffing at park benches and mounting innocent legs, is suddenly quite terrifying, even to O'Connor.

Ralph Meczyk (Bill the Cat) represents Roy Caballes, and he seems to think the court is in want of comedy today. Scalia chases him round until Stephen Breyer (Cheshire cat), who earlier wondered if it's OK for policemen to wear glasses when they peer in your windows, tries to get Meczyk to explain the difference between a policeman using his own eyes or nose to investigate some suspicious thing in plain view and a policeman relying on a dog to do the same. Breyer can't understand why it's OK for a cop to use his own nose to, say, sniff out "the Great Limburger Cheese Robber," he chuckles, but it's not OK for a dog to do the same.

Scalia sees nothing wrong with dog sniffs. "Every time I travel and come back to this country, officers parade dogs around me." So Meczyk tries to persuade Scalia to use the old duck analogy. "If it walks like a duck and quacks like a duck ... well, this walks like a dog and sniffs like a dog. ..." But the justices won't bite. (Perhaps he's forgotten that ducks are something of a sore spot for Scalia). Finally, Meczyk decides to make like Justice Clarence Thomas (let sleeping dogs lie) and just sit.

The dogs may just have had their day today.

Still, it's hard to predict how this case will be decided with Chief Justice Rehnquist (top dog) off the bench. Stevens mentioned again this morning that the chief will be voting on this case from home. It's still deeply disorienting to look up at the bench and see an empty chair in the middle, like watching a clock that's missing its 6.